Quickie-Election Rule … It’s Back

News Updates

The National Labor Relations Board (NLRB) once again is proposing “quickie election” rules to streamline the union campaign period, the board announced Feb. 5, 2014.

A court struck down previous quickie-election rules because the board did not have a quorum when it originally proposed such rules, three years ago. But now it does.

Identical Proposal

“In substance, the proposed amendments are identical to the representation procedure changes first proposed in June of 2011,” the NLRB noted in a release.

The proposed amendments encompass the following recommended reforms:

  • Include phone numbers and e-mail addresses in voter lists so that parties to the election can communicate with voters via modern technology.
  • Consolidate all election-related appeals to the board into a single postelection appeals process.
  • Streamline pre- and postelection procedures to facilitate agreement and eliminate unnecessary litigation.

The idea of providing phone numbers and e-mail addresses was unpopular among employers the last time the NLRB floated the quickie-election rule, said Ronald Meisburg, former NLRB general counsel and co-head of Proskauer’s Labor-Management Relations Group in Washington, D.C.

Under the current rules, if an employer appeals who should be in the bargaining unit before an election, there could be six to 10 weeks between the union petition for an election and the election, Steve Bernstein, an attorney at Fisher & Phillips in Tampa, Fla., told SHRM Online. Under the proposed rule, though, the hearing would be after the election, and the campaign period would be substantially shorter.

The proposed rule includes dissenting comments from board members Philip Miscimarra and Harry I. Johnson III, who raised the following questions:

  • As a result of the notice of proposed rulemaking (NPRM), precisely how short would election periods be?
  • How short is too short to ensure that employees have the “fullest freedom” of choice, as required by the National Labor Relations Act?
  • On what basis has the board ruled out the possibility that employees need more time than currently available to understand relevant issues and to make an informed free choice about union representation?
  • To the extent that the NPRM promotes efficiency or conserves the board’s resources, why are these objectives more important than (i) the right of employees to have sufficient time and information to understand relevant issues before voting, and (ii) the right of employees, unions and employers to engage in protected speech regarding election issues?
  • Why doesn’t the NPRM propose a mandatory minimum period between petition filing and an election, which could permit the adoption of procedural improvements without infringing upon protected employee, union and employer rights?

In dissenting comments on the proposed rule, the Miscimarra and Johnson said, “Yes, this means the election would take place first, and only later would there be a hearing regarding issues as fundamental as: (i) who can actually vote, (ii) which employees who cast votes would, in the end, be excluded from the bargaining unit and would not even have their votes counted, (iii) whether people who represent themselves as employee-voters during the campaign may actually be supervisors (i.e., representatives of one of the campaigning parties), (iv) whether other people who appear to be supervisors may actually be employee-voters, and (v) whether the union-represented workforce, if the union prevails, will ultimately exclude important employee groups whose absence would adversely affect the outcome of resulting negotiations.”

Sometimes, employers and unions stipulate who will get to vote; the campaign period can last 42 days if they agree on this matter. The board, however, is likely to cut that time to 21 days if the proposed rule goes through, Bernstein said.

Comments Sought

Additional dissenting comments included: Comments are due April 7, 2014, and reply comments are due April 14.

If finalized without substantial changes, the quickie-election rules could truncate employers’ ability to communicate with employees about union elections, Meisburg cautioned.

Bernstein said that unions already win most elections, but with shorter campaigns they are likely to file more petitions to hold elections, as they will have an even better chance of winning.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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